Thinking Citizen Blog — Satan’s Pen — the Rhetoric and Reality of Bipartisanship
Thinking Citizen Blog — Sunday is Political Process, Campaign Strategy, and Candidate Selection Day
Today’s Topic: Satan’s Pen — the rhetoric and reality of bipartisanship
Biden’s inauguration was inspiring. Amanda Gorman’s performance was the high point in the celebration of “unity.” But the slew of executive orders that followed prompted even the editors of the New York Times to scream ‘Whoa, Nelly!” “President Biden is right to not let his agenda be held hostage, but legislating through Congress is a better path.” In the words of Brookings fellow John Hudak, executive orders are “Satan’s Pen.” ‘When your party is in power, they are the greatest thing on earth. When your party’s out, it’s undemocratic.” Put differently, are executive orders, the litmus test of bipartisanship? Experts — please chime in. Correct, elaborate, elucidate.
“EASE UP ON THE EXECUTIVE ACTIONS, JOE” (New York Times, 1/27/21)
1. “A week into his presidency., Mr. Biden has issued a raft of executive orders and other actions. Already, he has committed to rejoining the Paris climate change agreement, ended the Muslim travel ban, canceled the permit for the Keystone XL pipeline, rescinded funding for and halted construction on the wall at the southern border, reaffirmed the Deferred Action for Childhood Arrivals program, mandated mask-wearing on federal grounds, moved to end the federal government’s reliance on private prisons, reversed the ban on transgender military service, and called for agency assessments aimed at advancing racial equity — just to name a few. The coming days will bring more such action.”
2. “But this is no way to make law. A polarized, narrowly divided Congress may offer Mr. Biden little choice but to employ executive actions or see his entire agenda held hostage. These directives, however, are a flawed substitute for legislation.”
3. Executive over-reach invites intervention by the Courts and executive orders can be easily reversed. This creates “instability and uncertainty.” “Dreamers deserve better than to be subject to the whims of whoever holds the White House. It is long past time for Congress to establish a clearer, more permanent path for them.”
NB: “On the campaign trail, he often touted his skill at finding compromise, and his decades as a legislator, as reasons to elect him over Mr. Trump. The country faces significant challenges to recovering from the pandemic, from years of safety nets and institutions and trust being eroded. Now it is time for the new president to show the American people what permanent change for a better nation can look like.”
“A RACE TO THE LEFT” — Karl Rove, Wall Street Journal (1/27/21)
1. “The new president’s actions don’t suggest he’s interested in bipartisan progress.”
2. “He will have to work with Republican leaders to find areas of agreement before surfacing legislation. On Covid-19 stimulus, the President did nothing of the sort. Instead he laid out is initiative without consulting Republicans and included several provisions and a new $1.9 trillion price tag he knew were unacceptable to GOP lawmakers. Now rather than quickly passing a bipartisan bill that strengthens vaccinations and gives a new administration an early victory, we hear talk of Democrats ramming Covid relief through on a party line vote using a reconciliation procedure.”
3. “Mr. Biden displayed a similar approach on immigration. The Biden transition team issued a four-page outline of its bill, heavy on a path to citizenship for illegal aliens (it appears many could become citizens before some standing in line legally today) and light on border security. The latter is especially troubling after the president halted construction on the border wall. The Obama-Biden helped build the wall, but since President Trump championed it, President Biden now opposes it.”
NB: “Bipartisanship is possible, even under difficult circumstances. After a contentious election, in 2001 President George W. Bush passed a major tax cut and the No Child Left Behind education reform with strong bipartisan support, the latter with a Democratic Senate. For the tax cut, he negotiated with Democrats on the package. For No Child Left Behind, he drew Democrats into shaping the legislation before its introduction. Mr. Biden has attempted neither. Meanwhile, Mr. Biden’s initial cabinet nominations are getting approved by big bipartisan margins. Republicans are showing they’re open to finding common ground.”
BACKGROUND ON EXECUTIVE ORDERS: the Constitution and History
1. Article Two of the US Constitution gives the President broad powers to make sure that the laws of the land are “faithfully executed.”
2. Acts of Congress have also delegated to the President much discretion in the execution of laws.
3. The Supreme Court has held that all executive orders are subject to judicial review. (Although it should always be remembered that judicial review is not in the Constitution itself. It was the creation of Chief Justice John Marshall in Marbury v Madison.)
NB: The most famous executive order ever was Abraham Lincoln’s Emancipation Proclamation. But, “with the exception of Benjamin Harrison, all Presidents since George Washington in 1789 have issued orders that in general terms can be described as executive orders. Initially, they took no set form and so they varied as to form and substance.” The numbering system began in 1907 retroactive to Lincoln’s order of October 20, 1862 regarding political prisoners. FDR issued the most: 3721. Woodrow Wilson next: 1803. Calvin Coolidge, third at 1203. Recent presidents: Clinton, 364, George W. Bush, 291, Obama, 276, Trump, 220. Note of course that Trump served for only one term and FDR was elected four times!
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